Margin of error for immigration filings shrinks

The U.S. Citizenship and Immigration Service building in San Antonio, Texas. (Photo by USCIS via Twitter.)

The government will no longer give immigrants the opportunity to correct issues with immigration filings. That’s the gist of a new policy memo that went into effect last month.

In conversation with Alex Stonehill, immigration lawyer Tahmina Watson explains the impacts of the change, and how it is a frightening sign of ambitions to remove thousands of people seeking legal immigration to the U.S.

The following conversation, adapted from the transcript, was edited for grammar and clarity.

Alex: Today we’re talking about another new policy change from US Citizenship and Immigration Services, which went into effect earlier this week. What’s the headline here? In really general terms what does this change mean?

Tahmina: This change means that the government can deny cases without giving one the proper opportunity to prove their case. It’s a very drastic change and it goes into effect on September 11th. I believe USCIS chose that date on purpose when it could have chosen a Monday or a Friday. It means that all cases are going to be affected and we can elaborate on that in a minute

Let me explain the background a little bit. Any case that a person will file will often get a request for further evidence (RFE) if the requirements haven’t been met or there are still questions that the officer feels are necessary to explore. It gives the opportunity to either address an issue that wasn’t addressed, that the immigration officer feels is necessary, or sometimes rectify a problem that wouldn’t necessarily amount to a rejection of a case. So this new policy means that the government will now have the opportunity to outright deny a case without giving the opportunity to rectify the mistake or allow you to satisfy their objections.

Alex: So rather than saying “you’re missing this piece of paperwork,” or “this was done wrong,” it’s just an outright denial.

Tahmina: That’s correct. The trouble is, if initial evidence is missing one should not have a denial, one should get a rejection. The denial means that the government keeps your money and says, “thank you very much but no thank you; take your case away.” And it will hopefully allow you to still apply again, but they’ve now kept your money.

When it’s a rejection it means that they say “hey you filed this case it wasn’t done properly here’s your money and here’s your case back.” What we will find is that people will be losing a lot of money for minor issues.

But there could be a bigger ramifications. Let’s say your status is expiring and you don’t have the permission to be in the US anymore or there is some other reason for you to actually file your application you are now losing that time. And we don’t know what the timeline will be between a denial filing a case and that the denial often a rejection will take several weeks to receive. For example, it’s a common mistake for a number on a check to be written incorrectly. You know, instead of $1760, a client might have written $1750. And the government generally rejects that case and sends it back. It can take six or seven weeks to get that file back. This example shows that it is hard to guess how
long it will take to receive a denied file back from USCIS. That interim period may be crucial for applicants in between statuses.

And going back to your previous question which types of cases this is going to affect: It’s going to affect every single one.

Alex: So that’s visa applications for work, for student visas, people applying for citizenship even? All of that stuff? Is there anything else I didn’t list?

Tahmina: You know, they will not apply to DACA (Deferred Action for Childhood Arrivals), as far as I understand, but everything else will be affected. And that’s a big deal. So the first prong of that we discussed of the initial evidence. Now maybe I can understand that. Fair enough, you’re gonna deny it. You don’t want people to make mistakes. But the second prong of it is that they are going to deny cases where they feel like the eligibility has not been established now that’s a heavier burden and that’s going to be rather subjective.

Alex: : I’m gonna be asking you to speculate here but, why do you think this is happening? Clearly when it comes to the administration the President is setting the agenda generally speaking. But this is probably above, or below, his pay grade, however you want to put it. So where is this coming from, do you think? Is there just a general sense of ‘let’s try to deny as many cases as we can,’ and this is the sort of bureaucratic way to do that? Or is there something else going on?

Tahmina: I think there’s a broader policy at the moment where the President does want to find ways to deny cases and he somehow has found a lot of people who have the same beliefs as him and you know some of the figureheads of the new administration like Stephen Miller are setting the agenda. And what’s interesting is that they are putting people into key positions in each agency like the Department of State and like the USCIS where they are essentially taking that mindset and the ultimate agenda and filtering it into policy here.

Before this RFE memo came out, a new memo had come out called a notice to appear memo (NTA memo) that basically said, if somebody has a denied case and they don’t have status we are going to start putting it them into removal proceedings. That memo came out two weeks before the RFE memo. That memo basically said USCIS officers will have to enforce these laws and start issuing NTAs.

Alex: Which is something that previously had been done more by Homeland Security or ICE right?

Tahmina: That’s correct, ICE used to have that authority (and still do). So let’s say we’re talking about the RFE memo, and a case has been denied and this the person in question doesn’t have status, that file would go to ICE and they (ICE) would eventually put the person in removal proceedings by issuing an NTA memo. This new memo basically will make USCIS the enforcer.

We don’t know when that will be implemented, because soon thereafter a new notice came out saying, “We are issuing guidance and we will let you know when this NTA memo will be in effect.” But if you look at recent news where DHS has been given $200 million, without Congress’ approval they are just appropriating it from different funds, it tells me they’re getting ready for more detention. And the RFE memo is crucial to understand because it is going to be the catalyst of all of that happening.

So if our listeners are thinking about filing an application, the first thing that they want to do is really have a lawyer help them. Never has an immigration lawyer been more important.

You know some cases are simple enough where you can file it. But I can tell you many examples where a simple box has been checked wrongly and it’s resulted in a denial. So, what do listeners do? If they do file on their own, the place to go to is the instructions. is the website where people will find forms. A form will also have its own instructions so people should go to those instructions over and over again. As a lawyer I go back to those all the time as well but those instructions tell you what the initial evidence is. So you as a layperson filing your own case will have some confidence that you’ve been able to meet those initial requirements.

Alex: …So you haven’t missed something that previously they would have told you “you missed this thing” and now it looks like they wouldn’t tell you they would just deny your case — and keep your money.

It sounds like the bigger picture that you’re painting is, effectively they’re gonna start criminalizing what used to be more routine immigration processes. When we talk about deportation, in my mind I think about somebody who has intentionally crossed the border illegally, that probably compounded with having committed some sort of crime here in the United States, beyond just that. Now you’re saying it seems like they’re gearing up to put the both the financing and the policy in place that they can start easily rejecting cases that are well-intentioned people trying to immigrate or naturalize, and then actually find and deport those people as well.

Tahmina: Absolutely. You know, I’m concerned for every single type of case I file. But I am particularly concerned about the H-1Bs and now L visas — that’s a multinational transfer. Some of these employment based cases where these are people who’ve been in the US legally for a very long time, sometimes decades, because our entire immigration system is broken. It needs to have been modernized many years ago and it hasn’t. There are people in the pipeline to get green cards who rely on H-1Bs to maintain status. What we have seen in the last months is that USCIS is scrutinizing H-1Bs in unprecedented ways and now to deny these cases it means that the future of the people waiting for a green card is in jeopardy.

So, the problem is huge. Until it’s implemented, it’s speculation. Are they still going to send RFEs for these types of cases? We don’t know. But the writing on the wall is they will not, so I think you know maybe in a few weeks or a few months we’ll probably chat about this particular issue again. But for the moment, listeners might need to understand that this is something they need to pay attention to find the memo they can go to our blog they can go to your newspaper and learn about the issues that they need to be aware of to protect themselves and their loved ones.